Appeal from the Order of the Superior Court entered January 7, 1986, at No. 22 Philadelphia 1985, remanding an Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, entered November 28, 1984, at No. 2700 June, 1980.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., files a concurring opinion.
The Commonwealth appeals from an order of the Superior Court which reversed an order of the Court of Common Pleas of Philadelphia County. In the latter order the trial court revoked a two-year sentence of probation imposed on appellee for burglary, and imposed a two to four year term of imprisonment for two separate convictions which occurred during the probationary term and which violated its conditions.
On September 18, 1980, Joseph Marchesano pled guilty to a charge of burglary in the Court of Common Pleas of Philadelphia. The court imposed a sentence of two years probation. On September 10, 1981, he pled guilty to charges of simple and aggravated assault, and recklessly endangering a person. He was sentenced on May 6, 1982, to one to two years of confinement for the convictions on the assault charges and given a suspended sentence on the reckless endangerment charge. At a violation of probation hearing, held on June 3, 1982, Mr. Marchesano's probation on the original burglary conviction was revoked and the court sentenced him to two years probation to run from that date concurrent with the sentence he was then serving on the assault convictions. He was subsequently arrested in Montgomery County on December 29, 1983, and charged with forgery, receiving stolen property, theft by deception, aggravated and simple assault, and possession of an instrument of crime. The following month, on January 12, 1984, he was again arrested in Montgomery County and charged with robbery, possession of an instrument of crime, terroristic threats, simple assault, theft by unlawful taking-disposition, and unauthorized use of an automobile.
On May 5, 1984, appellee was sentenced to five years probation on the December 29, 1983, charge of theft and two years probation for simple assault. The other charges from the December arrest were dismissed by entry of orders of nolle prosequi.
On June 6, 1984, appellee was found guilty on the January 12, 1984, charge of robbery, and sentenced to three and one-half to ten years confinement by the Court of Common Pleas of Montgomery County.
As a result of the convictions appellee was scheduled for a probation violation hearing on October 17, 1984, in Philadelphia. However, for some reason not disclosed in the record appellee was not transported to the court from the State Correctional Institution at Dallas, where he was serving the term of confinement imposed as a result of the June 6, 1984, conviction.
On November 28, 1984, the rescheduled violation of probation hearing was held in the Court of Common Pleas of Philadelphia. At that hearing the court revoked the probation imposed on June 3, 1982, and sentenced appellee to two to four years of confinement consecutive to any sentence he was then serving. Appellee raised no issue of denial of a right to a timely hearing during the proceeding.
On December 26, 1984, appellee, represented by new counsel, filed a motion for reconsideration of sentence, raising the issue of failure to proceed with a speedy revocation of probation hearing for the first time.*fn1 The court took no action on the motion, finding it untimely and the issue therefore waived.*fn2 Appellee then appealed to the Superior Court claiming ineffectiveness of counsel because of failure to raise the issue at the November 28, 1984, violation of probation hearing.
Superior Court agreed with the trial court and held that the substantive claim that appellee was denied his right to a
prompt violation of probation hearing under Pa.R.Crim.P. 1409 was waived for failure to raise it at the November 28, 1984, hearing. Commonwealth v. Marchesano, 348 Pa. Super. 387, 395, 502 A.2d 597, 600 (1985), citing Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 ...